1. This is an appeal from an order of remand by the lower appellate Court. Two points have been urged in support of the appeal. In the first place, it is contended that the lower appellate Court is not right in its view that time was not of the essence of the contract on the terms of the contract in question. It may be mentioned that the contract in question is dated April 11, 1917, under which the defendants agreed to sell, to the father of the present plaintiffs, certain lands referred to in the contract for Rs. 300. The payment was to be made after four years from the date of the agreement and Rs. 5 were paid as earnest-money. It appears that the land in question originally belonged to the plaintiffs' father and was sold by him in 1904 to the defendants' father. The plaintiffs obtained possession of the land in question as tenants of the defendants after this agreement and continued in possession for about four years, when they were dispossessed by a decree of the Mamlatdar which was obtained by the defendants against them.
2. Subsequently, a suit was filed in 1921 on the basis that the transaction of 1904 was really a mortgage. But that suit was dismissed and the present suit was filed by the plaintiffs for specific performance of the contract in question.
3. The trial Court decided that the time fixed under the contract was of the essence of the contract having regard to the ratio decidendi in Samarapuri Chettiar. v. Sudarsanachariar. I.L.R. (1919) Mad. 802. The trial Court taking that view of the matter proceeded to deal with other issues, and decided the suit without recording any finding on issue No. 4, which related to the amount which the plaintiffs were to pay to the defendants in case they were held entitled to get the lands and the sale-deed. The plaintiffs' suit was dismissed by the trial Court.
4. In appeal the First Class Subordinate Judge, with appellate powers, made an order of remand, which is now under appeal. The appellate Court took the view that time was not of the essence of the contract, that the ratio decidendi in the Madras case did not apply to this contract, and that the observations of, their Lordships of the Privy Council in Jamshed v. Burjorji (1915) 18 Bom. L.R. 163 as to time not being of the essence of the contract in contracts relating to sales of immoveable property, would apply to the contract in question, As regards this point, it has been urged by the appellants that the lower appellate Court's view is not right.
5. It is quite true that the property in question originally belonged to the plaintiffs' father but it was sold to defendants' father in 1904; and as this contract was entered into in 1917, it is difficult to treat it as connected with the sale of 1904, and as an agreement of re-purchase. In fact, it is an independent transaction. It might have been induced by the consideration that originally the property belonged to the plaintiffs' father, but it cannot, on that account, be treated as connected in any way with the transaction of 1904. The contract in terms purports to be a contract for the sale of immoveable property and certain period is stated, after which the payment contemplated under the contract is to be made. Such a contract is not any the less an ordinary contract of sale simply because the intending purchaser was the original owner of the property some years ago. The contract in terms does not refer to the transaction of 1904. Treating it as an ordinary contract of sale, it seems to us that the lower appellate Court was right in holding that the observations in Jamshed's case, which have been above referred to, would be applicable to such a contract.
6. The next point urged is that the order of remand is not proper, It seems to us that the decision of the trial Court was not based on a preliminary point in any sense, and the order of remand, therefore, could not be properly made under Order XLI, Rule 23. There may be cases in which, even though the case may not be covered by the provisions of Rule 23 of Order XLI, the Court may direct a remand. But, under the circumstances of the present case, we see no such ground for departing from the limits of Order XLI, Rule 23. The lower appellate Court should have proceeded to deal with the appeal on the merits. If it found that any particular issue was not decided by the trial Court or that further evidence was necessary on any point, it could have and should have acted under Rule 25 of Order XLI, of the Code. But the reversal of the decree and the remand of the whole case with liberty to the parties to open up the whole case under the circumstances do not appear to us to be right.
7. Though we uphold the view on the main question which has been dealt with by the lower appellate Court, we set aside the order of remand and order the appeal to be remanded to the District Court for disposal according to law in accordance with the observations in this judgment. We direct that each patty should bear his own costs in this appeal. Costs in the District Court will be dealt with by the lower appellate Court while disposing of the appeal.
8. I would only add that, in my opinion, para 12 of the lower appellate Court's judgment, which contemplates issue No. 1 being re-tried, is one that is not justified under the circumstances of the case. The parties did adduce evidence on this particular issue, and I do not think that there are any grounds for a further opportunity to be given to either side to adduce evidence regarding it. As to the allegation of the defendant that there was an oral stipulation at the time of the written contract that time should be of the essence of the contract, I think the lower appellate Court should decide the case on such evidence as may have been adduced and is legally admissible. This raises the question of the admissibility of oral evidence to prove a variance of, or addition to, the contents of a written agreement under Section 92 of the Indian Evidence Act.